### IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE AT JACKSON November 4, 2003 Sessi on
STAT E OF T ENNES SEE v. SYLV EST ER GAI LES , JR. Direct Appeal from the Criminal Court for Shelby County

No. 00-12589 J.C. McLin, Judge

No. W2002-02080-CCA-R3-CD - Filed De cember 3, 2003

The defendant pled guilty to fourth offense driving under the influe nce ( DUI-fourth offe

nse), a fe lo ny, and received a two-y ear sentence with all but 150 d ays suspended . Pursuant to a plea agreement

reserv ing a certified question of law, he contends that Tennessee Code Annotated section 55-10-403(a)(3), the statut e settin g forth

the metho d of dete

rmining prior co nvictions , is unconstitutional as applied to his case. We dismiss the appeal for lack of jurisdiction af ter concluding the certified question of law is not dispositive of the case.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

J OE G. R ILEY , J., deliver

ed the opi nion of the

court, in which D AVID H. W ELLES and J OHN E VERE TT W IL LI AMS , JJ., joined. Randall B. Tolley, Me

mphis, Tennessee, for the appellant, Sy lvester Gailes, Jr.

Paul G. Summers, Attorney General and Reporter; Jennifer L . Bledsoe, Assistant Attorney Genera l; Willia m L. Gib

bons, Distr

ict Attorn ey Genera l; and Per ry S. Hay es and Ki mkea L ashea H arris, Assistant District Attorneys Gener al, for the appellee, State of Tennessee.
OPINION

The defendant was arr

ested on March 19, 2000, and charged with DUI -fourth offense, a Class E felony. See Tenn. Code Ann. § 55-10-403(a)(1). The indictment alleged he had three prior convictions for driving under the influence, one on Nove mber 28, 1994, and two on September 21, 1988. He pled g

uilty to DUI -fourth

offense and, pur suant to a plea a

greem ent, reserved a certified question of law. In this appea l, h e asks this court to determine whether the following hig hlighted portion of Tenness ee Code A

nnotated section 5 5-10-403 (a)(3) is constitu tional:

For purposes of this section, a person who is convicted of a violation of

§ 55-10-401 shall not be considered a repeat or multiple offende r a nd su bject to the penalties prescr i bed in subsection (a), if ten (10) or more y ears have elapsed between suc h conviction and any immediately preceding conviction for a violation. If, however,
a person has been convicted of a violation of § 55-10-401 within ten (10) ye ars of the1 Although we do not ad dress the issue o n its merits, w e do note th at thi s cour t ha s addr esse d thi s i ssu e on

numerous prior occa sions. See, e.g., Stat e v. Robert A. Si sson , No. W2001-01666 -CCA- R3-CD, 2003 Tenn . Cr im. App. LEX IS 197 , at *5 (T enn. C rim. A pp. M ar. 4, 2 003 , at Jack son), perm. t o app. denied (Te nn. 20 03) ; State v. Clev er , 70 S.W.3d 771 , 776 -77 (T enn. C rim. A pp. 2 001 ); State v. Jani ce Carol Bisk ner , No. E2000- 01440- CCA-R3 -CD, 2001 Te nn. Cr im. Ap p. LE XIS 887 , at *25 ( Te nn. Cr im. Ap p. N ov. 1 3, 20 01, a t Kno xville).
-2- present violation, then such person shall be consider ed a multip le offe

nder and is subject to the penalties imposed upon multiple offenders by the pr ovisions of subsection (a). If a person is considered a multiple offender under this subdivision, then every conviction for a violation of § 55-10-4 01, within te

n (10) yea

rs of the imme diately

precedin g violation s hall be considered in determining the number of prior offenses, but in no event shall a convicti on for a viola tion occur

ring
more than twenty (20) years from the date o f the instant convicti on be considere

d for such purpo se . The defendant contends the provision operates in an “unconstitutionally retrospective manner” as it applies to his 1988 convictions for driving under the influenc e. 1 Thus, he argues he could only be pr osec uted for D UI -sec ond of

fens e. We

are una ble to address the merits of this nondispositive

issue sinc e we ar

e without j urisdicti on to hear this appe al.

Our state supreme court

has outlined the requirements for certifying

a question of law to the appella te courts. See State v. Preston , 759 S.W.2d 647, 650 (Tenn. 1988). The Preston require ments are now incorporated into Rule 37. See Tenn. R. Crim. P. 37(b)(2)(i), (iv). If those r equirements are not met, the appea l must be di smissed. State v. Pe nderg rass , 937 S.W.2d 834, 838 (Tenn. 1996). Among the requirements for a properly certified question of law is that it must be “dispositive of the case.” Tenn. R. Crim. P. 37(b)(2)(i), (iv).

An issue is dispositive when the appellate court “‘must either affirm the judgment or reve rse and dismiss.’” State v. Walton , 41 S.W.3d 75, 96 ( Tenn . 2001 ) (quo ting State v. Wilkes , 684 S.W.2d 663, 667 (Tenn. Crim. App. 1984)). An issue is never deemed to be dispositive when the appella te court might reverse and remand. Wilkes , 684 S.W.2d at 667. In the case under re view, the parties and the trial court certified the issuewas dispo sitive of t he case ; howeve

r, an app ellate court is not bound by the trial court’s deter mination that an issue is dispositive. Preston , 759 S.W.2d at 651. Rathe

r, the court must ma

ke a n independent determination of the dispositive nature of the issue and must deny appellate review if the court determines the issue is not dispositive. Id

. Re ce nt ly, in State v . James H. Thompson , No. M2002-02137-CCA-R3-CD, 2003 Tenn. Crim

. App. LEXI S 889 (Tenn. Crim. App. Oct. 13, 2003, at Nashville), our court was asked to a

ddress a similarcertified question concerning the state’ s right to prosecute a de fenda nt as a multiple DUI offender. Reasoning that the relief requested by

defendant Thompson would merely necessitate a remand rather than a

dismissal, the court concluded the question before it was not dispositive of the
case. Id. at *7. L

ikewise, in the instant case, the defendant concedes the relief he seeks would not result in the dismissal of the indictment; instead, it wo uld require his case to be remanded for consideration of the charge of D UI-second offe nse.-3-

Accordingly , the issue before us i s not dispositive of the defendant’s case. Because the certified question of law is not properly before this court, we dismiss for lack of jurisdiction.

JOE G. RILEY, JUDGE